Approximately seven months after a California state jury found that DeWayne Johnson’s workplace exposure to glyphosate-containing Roundup and Ranger Pro caused him to develop Non-Hodgkin’s lymphoma, another jury in California, this time in federal court, has arrived at the same conclusion. On Wednesday, March 20, 2019, in a trial overseen by U.S. District Judge Vince Chhabria, the jury found that Monsanto’s Roundup weedkiller was a substantial factor in causing the plaintiff Ed Hardeman’s Non-Hodgkin’s lymphoma, that it was more than 50 percent likely that the plaintiff’s use of Roundup substantially contributed to his cancer.
Hardeman’s attorneys claimed that he was exposed to glyphosate over a period of approximately 25 years of spraying Roundup on his 56-acre property during which time the spray allegedly frequently landed on his skin and face. The plaintiff’s attorneys presented various animal studies, mechanistic data, and epidemiological data in support of their argument that the more one uses Roundup, the higher the chances of getting non-Hodgkin’s lymphoma. Bayer criticized these studies as inadequate and unreliable, arguing, in part, that the differential diagnosis method used by one of plaintiff’s experts to determine the cause of the plaintiff’s Non-Hodgkin’s lymphoma was not a “valid scientific method.” Bayer also argued that Hardeman’s prior chronic hepatitis C and hepatitis B were contributing factors to his development of lymphoma.
The Hardeman trial contained a key difference from the Johnson trial, one that Bayer had anticipated would increase its chances of success: the Hardeman trial was split in two phases. During the first phase, the plaintiff could only introduce evidence pertaining to the causation element. If the plaintiff prevailed in the first phase, then the jury would decide the remaining elements of liability in the second phase. However, this strategy may have been arguably undermined when, subsequent to the bifurcation, the judge ruled that the plaintiff could introduce, in the first phase of the trial, internal Monsanto emails that allegedly showed an attempt by the company to convince a scientist to redo a test in which the scientist had concluded that glyphosate is “potentially genotoxic.”
The second phase of the trial starts next Wednesday, March 27th, when the jury will decide whether Monsanto adequately warned the plaintiff about its product’s alleged cancer risks as well as determine what damages, if any, he suffered. Following disposition of this matter, over 600 more Roundup cases, which have been consolidated, remain pending before Judge Chhabria in California’s northern district. The next case in this batch is scheduled to go to trial in May, but the judge has indicated his intention to wait until another state trial in Oakland, Pilliod v. Monsanto, that starts next Thursday has been decided.
As Bayer considers its next steps and legal strategy, the defense bar awaits to see how the Hardeman case is decided.